The opinion of the court was delivered by: GIBSON
The Court, after hearing and consideration, makes the following Findings of Fact and Conclusions of Law:
1. Pursuant to an invitation to bid issued by the United States Treasury Department and a bid by the Germain Lumber Company, a purchase order was issued by the United States Treasury Department dated October 21, 1937, to the Germain Lumber Company for 290,000 feet board measure of Southern Yellow Pine Lumber for use by the W.P.A.
2. The purchase order provided for delivery to be made by December 22, 1937, with the following liquidated damage clause:
"Liquidated damages chargeable shall be: -- two per cent of the contract price of each order or portion thereof for each and every day's delay in delivering the article or articles, supplies, or materials after the date when the same are to be delivered under the terms of this contract; but the maximum amount of liquidated damages that may be deducted on account of such delay shall be not more than the sum of Two hundred and fifty ($250.00) Dollars per day for such article or articles, materials, or supplies not delivered against each respective purchase order within the time specified therefor in the contract, and such deduction may be made from any payment due the contractor."
3. The Germain Lumber Company was delayed in making delivery of the lumber by a longshoremen's strike which was brought to the attention of the Government in accordance with the contract but no extension of the delivery date was granted.
4. The Germain Lumber Company had delivered 258,522 feet board measure of the 290,000 feet board measure of the lumber provided for in the purchase order by December 22, 1937, and between December 22, 1937, and December 27, 1937, the Germain Lumber Company delivered 50,653 feet board measure making a total of 309,186 feet board measure. Of this amount Germain Lumber Company received rejection notices for 36,526 feet board measure on or before December 22, 1937, the last notice being received on December 21, 1937.
5. No notice was given of any rejections, other than the 36,526 feet board measure rejected prior to December 21, 1937, until January 13, 1938, when Germain Lumber Company received a letter dated January 12, 1938, from the United States Treasury Department, Procurement Division, giving a summary statement of the lumber rejected but failing to state how much lumber had been accepted. This letter was followed by Germain's letter of January 18, 1938; Procurement Division's letter of January 14, 1938, which stated the total feet board measure which had been accepted but failed to give the amount in each class that was accepted. The total feet board measure stated in this letter, namely, 305,667 feet board measure, did not agree with Germain Lumber Company's total figure of 309,186 feet board measure and Germain Lumber Company could not determine from the facts in its possession just how much lumber of each size was necessary to fill the order. It was not until January 27, 1938, thirty days after the delivery of the lumber, when Germain Lumber Company received letter of the Procurement Division dated January 26, 1938, that Germain Lumber Company received notice of the amount of feet board measure of each class claimed to be due by the Government on this order, as follows:
Size Amount Due Price per M.B.M. Amount
12 X 12 57564 F.B.M. $68.00 $3,914.35
10 X 12 22860 F.B.M. 66.00 1,508.76
6 X 12 900 F.B.M. 66.00 59.40
5 X 10 751 F.B.M. 48.00 36.05
4 X 10 7534 F.B.M. 49.00 369.17
Totals 89609 $5,887.73
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